Penalty Notice for not wearing a mask

[Ftgab19]

Hi everyone 

 

Was hoping someone could help me with this Penalty Notice of £200. I was stopped in Asda by the police for not wearing a mask. I was wearing an exemption Lanyard that I downloaded from the government website. 
 

I get bad anxiety and acne when wearing a mask so I haven’t been wearing one and got the lanyard.
 

I only did that because the government website said I didn’t need a letter from my doctor or seek advice from any medical professional when deciding if I should be exempted. And I didn’t think I’d be able to book an appointment at the moment with Covid-19 to get a medical exemption. 
 

I explained this to the police but they still issued me with the notice and said I can appeal it if I wanted too. 
 

I think I have reason since the government have said you don’t need a medical exemption to say your exempted. I also use to suffer from asthma and it sort of comes back with the anxiety when wearing a mask. 
 

I’m just asking for some advice on how I should go about appealing any help would be appreciated. 
 

Thanks 

Andrew 

AEA23E4D-C065-4051-8E51-3BDD57571175.pdf

[45002]

From searching online

 

You have to go to court and fight your case in the magistrate court

 

Get legal advice from CAB or Solicitor

 

Apologies if I got it wrong.

 

http://tiny.cc/1o7mtz

 

...

 

[stu007]

Hi

 

Here are a couple of links on the legislation side:

 

https://www.legislation.gov.uk/uksi/2020/791/part/3/made

 

https://www.cps.gov.uk/legal-guidance/coronavirus-health-protection-coronavirus-wearing-face-coverings-relevant-place

 

To assist with this you will need to show your reasoning for wearing that exemption badge and as you describe in your initial post you thought your were exempt and followed Government Guidance as per there own website as it states at the following link:

 

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

(Note: you need to go down to Exemption Cards and read it you will see a link for 'download exemption card templates')

 

When you click the link it takes you here:

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own

(Note: It gives anyone access to download these Templates and use them)

 

I think it may be beneficial to speak to your GP to see if they would do a letter that due to your medical conditions you can't wear a face mask. (bear in mind for letters such as these GP Surgery may charge so make sure and ask if a cost involved)

[Ethel Street]

Before going to court to appeal this I would first put in a formal compalnt tpo the police. This has all the feel of police officers exceeding their powers for the reasons you said - you do not have to have proof of your medical status. I imagine the government decided that for the very practical reason that in the middle of a pandemic they didn't want GPs to be diverted from fighting covid to write millions of exemption letters.

 

There have been a number of well publicised cases in the media of ovezealous police issuing FPNs that shouldn't have been issued (remember the woman given an FPN by police because drinking a takeaway coffee whilst out walking was an illegal picnic?). In many cases the Chief Constable agreed that the officers shouldn't have issued the FPN and cancelled it. So it seems Chief Constables do have a discretionary power to cancel an FPN if they decide it shouldn't have been issued.

[45002]

I would think by the time a formal complaint was dealt with, your penalty notice would have gone up another £100 even more when it gets to court !

 

 

[Ethel Street]

28 minutes ago, 45002 said:

I would think by the time a formal complaint was dealt with, your penalty notice would have gone up another £100 even more when it gets to court !

 

 

There is no right of appeal in a court against an FPN. All you can do is not pay it  then you will be taken to court and be prosecuted for the original offence. The backlog of magistrates court cases is so long that your complaint to the police would be heard long before then. In reported cases (albeit where media publicity has been involved) It has taken a matter of days for police to respond. 

 

In any case it isn't one or the other, you can do both in parallel.  

Edited February 19, 2021 by Ethel Street

[Man in the middle]

2 hours ago, 45002 said:

I would think by the time a formal complaint was dealt with, your penalty notice would have gone up another £100 even more when it gets to court !

 

No it wouldn't. These Fixed Penalty Offers are not like car parking notices. If you take the matter to court the Fixed Penalty becomes irrelevant. The FP is an offer to you to dispose of the matter without criminal prosecution. If you decline the offer the only alternative is for the police to prosecute you.

 

In court the police have to prove that you were not wearing a mask and you did not have a "reasonable excuse" for failing to do so. You don't have to prove anything.

 

Quite how they will do this is not very clear. You told them your reason and they chose not to believe you. That's fine for dishing out a fixed penalty; it's not fine to secure a criminal conviction. They would have to prove that your excuse was either not reasonable or was not true.

 

The only evidence they can provide is that they asked you why you were not wearing a mask, you told them and they did not accept your "reasonable excuse". It would be for the court to decide the issue. If you are found guilty you will face an income related fine and prosecution costs.

 

If you decide to go to court I'll give you some more advice on how to approach the matter but you may like to consult a solicitor (many will give you a free consultation - go to the CAB for guidance) before you make your decision.

[Hammy1962]

Absolutely no help but.....................

 

Hamster is far too old for Acne.

 

Hamster has Anxiety and panic attacks.

Hamster has Asthma.

Hamster has a chest infection right now.

Hamster has had Covid - Yes, thats right, at one time recently Hamster had Asthma, Chest Infection and Covid all at same time.

Hamster still has cough.

 

Hamster spends max 1Hr on big weekly shop. 1Hr a week.

 

Hamster wears a mask.

 

There are medical exemptions of course but most people caught maskless think they are special, exempt or invincible.

 

Hamster personally knows people which have died from Covid.

 

Makes Hamster really mad.

 

H

Edited February 19, 2021 by Hammy1962

[Man in the middle]

38 minutes ago, Hammy1962 said:

Absolutely no help but.....................

Correct!  

 

The issue here is not what you think of the OP's action. It is whether or not he is guilty of the alleged offence.

[Manxman in exile]

While I agree that many police officers have behaved like officious people during Covid, and that if the OP complained the police might well drop it, and even if it got to court the OP might win, I can't help but have some sympathy with Hammy's view.

 

Many people who may be vulnerable themselves (and it sounds like Hammy is one) probably suffer considerable anxiety when shopping in the presence of others who are unmasked - and who may or may not have a valid reason for not wearing one.

 

I can see - depending on how successful this lockdown and vaccination are in reducing deaths and infection over the next few weeks and months - that people who don't just cough up the fixed penalty might end up in court and might even find magistrates convicting them - even if the law says they shouldn't be.

 

The police trying to impose penalties in situations where they patently shouldn't be doing so (like the woman referred to above drinking coffee while out walking and many other well publicised ludicrous examples) is one thing, but it would appear that the wearing of masks while shopping has medical and other scientific evidence to strongly support it as a way of reducing the risk of infection and, presumably, some avoidable deaths.

 

And as somebody who received medical treatment for severe acne for about 20 years, I can't help but take a bit of a sceptical view of acne being put forward at all as a reason for being exempt from wearing a mask.  I know the OP mentions anxiety too, but honestly, the mere mention of acne too really weakens the whole argument.

 

I suspect few people here will agree with me, but I suspect most of the general public - and perhaps a few magistrates - will

 

[Ethel Street]

I'm not going to comment on whether OP's medical condition justifies an exemption as I know nothing about her or him, but one point I'd use in my defence if I were the OP was that I had previously taken the time to read the government guidance, download the exemption certificate, create a lanyard and was wearing the lanyard when given the FPN. I know the exemption certificate is a 'self certification' and no guarantee of medical need but it should have been evidence to the police, IMO, that the OP was not making up a medical need on the spot when seen without a mask but had previously taken steps to consider whether they had an exemption and acted in good faith and with a genuine belief they were justified in claiming a medical exemption.

Edited February 20, 2021 by Ethel Street

[Ethel Street]

Also to add that complaining to the police ("making representations" - there's usually instructions on the back of the FPN how to do this) is preferable to not paying and going to magistrates court. An FPN is not a recordable offence so does not appear on the police national computer and so you don't get a 'criminal record'. However if you don't pay and get prosecuted in a magistrates court and are convicted it is a recordable offence and you get a criminal record. Getting the police to withdraw it is the best thing, get some advice from a solicitor of CAB on making the representation. Check time limits for making a representation.

 

This solicitors' article might be of interest

 

https://www.bindmans.com/news/student-coronavirus-fixed-penalty-notices-withdrawn

[Manxman in exile]

I think a moment's reflection would probably show that a "good faith" argument based on the OP's having checked the guidance is not at all persuasive.  It's equally consistent with looking for a reason - any reason - for not wearing a mask when perhaps they should be. 

 

To illustrate.  A couple of weeks ago (before this thread) my wife announced - half in jest; half seriously - that she had probably been suffering from a hidden disability for all her working life.  I - most certainly in jest - said:  "OK, I'll send off for a sunflower lanyard for you and print off a government exemption card for you so you won't have to wear a mask shopping".  Because we are responsible citizens we did not do this, but if we had, my knowledge of the governement guidelines would definitely not indicate that we were acting in good faith - in fact it would indicate quite the opposite.

 

Whether the OP challenges the police penalty or sees if it goes to court, I would encourage them to get a letter of exemption from either their GP or the specialist whose care they are under.  Assuming the OP has medication prescribed for both their acne and anxiety (which I presume they must if both conditions are severe enough to prevent them from wearing a mask) this should be easy to ask for next time they request repeat medication. 

 

I am confident that if the OP adds that they have already received a fixed penalty or fine for not wearing a mask, that their GP or specialist will be more than happy to oblige - that is if they consider the OP has a valid medical exemption.  This would have the added advantage of preventing this from happening to the OP again and saving a lot of future anxiety.

 

The OP might consider themselves lucky that they don't live in the land of my birth where a surprisingly large number of people (including the jetski Romeo) have, apparently, been imprisoned for breaching Covid regulations.

[Ethel Street]

Having reflected for several more moments I think we will just have to differ in our advice to the OP @Manxman in exile

 

Any prosecutor would, in my opinion, struggle to convince a court that reading govrnment guidance on when a mask was required should be interpreted by the court os evidence of an intention to breach the law by falsely claiming an exemption when the more obvious conclusion would be that it was evidence of intention to comply (in the absence of other evidence to the contray that has not been mentioned by OP).

 

I hope OP returns to give us an update on this.

Edited February 20, 2021 by Ethel Street

[Manxman in exile]

Let's differ.

 

If the OP is unable to wear a mask, I'm sure they will be able to avoid future incidents like this by getting a letter from their GP confirming that they have a medical exemption.  Simply explaining to their GP that they have already fallen foul of the police and have already received a fixed penalty should see such a letter being provided.  I'm sure no GP would want to see one of their patients with a valid medical exemption being unfairly fined and would not consider such a letter an unjustified waste of time.

 

It would also have the advantage for the OP of removing any uncertainty and avoidable anxiety should it get to court.

[Man in the middle]

I think we need to be a bit careful here.

 

The OP is not claiming an ”exemption”. He is claiming that he failed to wear a face covering because he had a “reasonable excuse.” Whilst the legislation mentions both, there is a critical difference.  The legislation says this:

 

Regulation 3 (1) No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering.

 

(2) The requirement in paragraph (1) does not apply—

 

(a) to a child who is under the age of 11;

.

.

[and other people, such as those working in the shop, a police officer, an emergency responder, etc]

 

It then goes on to say:

 

Regulation 4 (1) For the purposes of regulation 3(1), the circumstances in which a person (“P”) has a reasonable excuse include those where—

 

(a) P cannot put on, wear or remove a face covering—

(i) because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(10)), or

(ii) without severe distress;

.

.

 [There then follows another eight examples of reasonable excuses, none of which relate to medical reasons]

 

Two things need to be borne in mind:

 

The OP is relying on (3)(1) on its own – that is that he had a “reasonable excuse”. He then goes on to employ (4)(1)(ii) – that he suffers severe distress if wearing a face covering.

 

Even if this might fail, it should be noted that the list of “reasonable excuses” mentioned in (4)(1) is not exhaustive. His combination of suffering from acne and from suffering anxiety is a separate, unlisted reasonable excuse which the court would be bound to consider. This aspect makes the interpretation of the legislation subjective. He is not relying on (3)(2) which provides for specified (exhaustive)  exemptions. The police have obviously decided that his “reasonable excuse” does not fit the bill. On what basis is unclear.

 

The legislators have, either deliberately or because of sloppiness, drafted the legislation in a vague manner. Particularly, “severe distress” (or its synonym, “anxiety”) are highly subjective. At the end of the day it would be for a court to decide just whether the OP’s “reasonable excuse” is reasonable enough or not. Depending on the prosecution’s evidence it would be debateable whether the OP would have to give evidence to defend the matter. But they would be bound to say when giving their evidence (or if not, under cross examination) that the OP mentioned he had read the guidance and decided he had a reasonable excuse. They would also be bound to mention that he was wearing the lanyard. It is scarcely the defendant's fault that the legislation has been drafted with these escape clauses. In fact it may be deliberate. I do not think it is a foregone conclusion by any means that he would be convicted.

Edited February 20, 2021 by Man in the middle

[Manxman in exile]

Those are good points.

 

I agree that it is by no means clear that the OP would be convicted if it got to court - but neither is it clear to me that he would necessarily be acquitted.  A court might - or might not - decide that not wearing a mask due to his acne and anxiety was a reasonable excuse. I suspect some courts would decide it was not.

 

I also agee that this whole thing is a shambles.  It might be due to sloppy drafting but I also think it's intentional vagueness on the part of the governement.

 

The reason I became aware of this "sloppiness" was that I was listening to local BBC radio last month and there was a news item about local supermarkets saying they were  "cracking down on and enforcing" the wearing of masks.  After I read the government guidelines I wondered how this "crackdown" on mask wearing would be put into effect - so I emailed the head offices of those supermarkets and asked them.  Basically the answers boiled down to "we can't enforce the wearing of masks and we aren't going to attempt to do so".  Despite what they'd been telling the BBC.

 

I did consider getting a sunflower lanyard myself and printing off the government exemption cards to see if they worked*.  But I decided that would be irresponsible and not public-spirited.  Plus I don't want to be infected.

 

Unlike many people I'm not completely critical of everything this government has done regarding Covid, but they've completely bottled it around enforcing the wearing of masks - just as they did when they should have cancelled Christmas.

 

*Having admitted that I would have tried it myself - without having a reasonable excuse or medical exemption - if I were in the OP's position I probably would not pay the penalty and take my chances in court.  But I'd get a letter from my GP just in case, and I'd be prepared for the possibility that I might be convicted.

 

PS - I'm aware that some of my posts will come across as critical of the OP.  That is not intended.  My real purpose is to be critical of the ineffective measures put in place by government that cannot be enforced in practice.

 

I also have great sympathy with the views expressed by Hammy1962.

 

 

[Ethel Street]

17 hours ago, Man in the middle said:

I think we need to be a bit careful here.

 

The OP is not claiming an ”exemption”. He is claiming that he failed to wear a face covering because he had a “reasonable excuse.” Whilst the legislation mentions both, there is a critical difference.  The legislation says this:

 

I agree with your analysis of the language of the regulations but inmformally "exemption" is used to describe "reasonable excuse for medical reasons" even by the government in their guidance

 

Exemption cards

If you have an age, health or disability reason for not wearing a face covering:

• you do not routinely need to show any written evidence of this
• you do not need show an exemption card

This means that you do not need to seek advice or request a letter from a medical professional about your reason for not wearing a face covering.

 

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

[Man in the middle]

Quote

I agree with your analysis of the language of the regulations but informally "exemption" is used to describe "reasonable excuse for medical reasons" even by the government in their guidance

 

I agree. But the difference is quite important. The list of exemptions is exhaustive. If you don't fit the list you are not exempt and that's that. So if you went to court claiming an exemption all the prosecution would have to prove was that none of the exempt categories applied to you. In fact, all the person suspected of the offence would have to do, when tackled by a police officer, would be to prove that he was exempt and (provided the officer is sensible) that would be that. No subjective decision is required on the officer's part.

 

With a "reasonable excuse" it's different. In this case the officer either did not believe the OP's excuse (e.g. did not believe he suffered anxiety) or if he did he did not believe it was reasonable. The only place to adjudicate on that disagreement is in court. Either that or you accept the officer's ruling and pay the fixed penalty.

 

Much of the Covid legislation which effects most people is peppered with exemptions, exceptions and "reasonable excuses". It's almost as if the legislators were reluctant to impose any restrictions and provided as many get-out clauses as they could think of. However, I digress. It would be nice if the OP were to come back and give us his thoughts now we have provided ours.

 

 

[Manxman in exile]

51 minutes ago, Man in the middle said:

 

...

 

Much of the Covid legislation which effects most people is peppered with exemptions, exceptions and "reasonable excuses". It's almost as if the legislators were reluctant to impose any restrictions and provided as many get-out clauses as they could think of. However, I digress. It would be nice if the OP were to come back and give us his thoughts now we have provided ours.

 

 

 

 

This is true.  Much of this government's response to Covid has been sub-optimal (not that many other countries have fared much better) at the best of times, but the rules and guidance around the wearing of masks is utterly shambolic.  I don't think it's inadvertant - I think it's deliberate as they do not want to be seen to be discriminating against or offending people who - for a good reason or not - think they should be exempt from wearing masks.

 

Having read the government guidance I would, if I were the OP, be happy not to pay and to let it go to court, if I thought I had a reasonable excuse for not wearing a mask.  But I'm retired, am quite willing to be awkward just to make a point, and a conviction would hold no fear for me.  The OP's circumstances may be different.

 

However, I would also be fully aware that the government guidelines may not be entirely reliable on this point (and government guidelines often do not accurately reflect the law) and that a magistrates court might very well decide that anxiety and acne do not provide a reasonable excuse not to wear a mask.  (And if I were the OP I think I'd drop the acne side of it - I don't think it strengthens their argument at all).

 

And this is not intended as a criticism of the OP but, before deciding how to handle this problem, they may want to consider themselves how reasonable their not wearing a mask is.  It is partly a question of having respect for others, as I'm sure that encountering unmasked shoppers is something that can add to the anxiety levels of other shoppers - particularly those who may be in a more vulnerable condition than the OP.  The OP may indeed find wearing a mask, difficult, uncomfortable or that it does indeed raise anxiety levels somewhat, but they need to be aware that despite what the guidelines seem to say, a court might find otherwise.

[hightail]

3 hours ago, Manxman in exile said:

And this is not intended as a criticism of the OP but, before deciding how to handle this problem, they may want to consider themselves how reasonable their not wearing a mask is.

That word 'reasonable' is what makes it all so difficult. A court might find it isn't at all reasonable not to play your part in protecting yourself and others if you could wear a mask even though you have a condition which makes it slightly more difficult than for the person next to you.  It isn't easy or pleasant for anyone, it will all come down to a matter of degree.

Edited February 21, 2021 by hightail

[Ethel Street]

2 hours ago, hightail said:

That word 'reasonable' is what makes it all so difficult. A court might find it isn't at all reasonable not to play your part in protecting yourself and others if you could wear a mask even though you have a condition which makes it slightly more difficult than for the person next to you.  It isn't easy or pleasant for anyone, it will all come down to a matter of degree.

 

A magistrates' court could, theoretically, decide that but would be very unlikely to ignore official government guidance on exemptions from wearing a mask

 

OP on here is being subjected to some very unwarranted assumptions in my opinion, unless posters here know more about her/his medical condition than I do. 

 

I'm not surprised posters on here asking for help aren't coming back when they are treated this way.

Edited February 21, 2021 by Ethel Street

[hightail]

17 minutes ago, Ethel Street said:

A magistrates' court could, theoretically, decide that but would be very unlikely to ignore official government guidance on what is reasonable

Most of the conditions which can give rise to a reasonable excuse for not wearing a mask are not digital.  I know someone with asthma who wears a mask and others who don’t.  That doesn’t mean all people with asthma could cope with a mask though plenty do.  A court wouldn’t be ignoring official guidance when making an individual decision.

Edited February 21, 2021 by hightail

[Ethel Street]

15 minutes ago, hightail said:

Most of the conditions which can give rise to a reasonable excuse for not wearing a mask are not digital. 

 

Sorry but that makes no sense at all to me. I have no idea how a medical condition can or canot be "digital" or what "digital "has to do with the regulations.

 

CAG is here to help people, not to tell them  why, on no evidence, they are not meeting their social obligations (as defined by other posters)

Edited February 21, 2021 by Ethel Street

[hightail]

9 minutes ago, Ethel Street said:

Sorry but that makes no sense at all to me. I have no idea how a medical condition can or canot be "digital" or what "digital "has to do with the regulations

Fair enough.  To me it makes perfect sense that someone with mild anxiety or mild asthma may not have the reasonable excuse that it would cause severe distress to wear a mask whereas those with more severe illness would.